Constitutional guarantees relevant to torture of suspects

[Lynne Henderson]

I agree that  we ignore international law at our peril.  On the so-called
realpolitik side, torture and deprivation of rights to in custody persons
does not help the cause of combatting terrorism one iota.  Indeed, it
strengthens arguments about US hypocrisy, that it does not wish the world
to be free, and we create martyrs.
On the legal side, International law does apply to us,  treaties apply t o
us,*pace* the "debate" about whether treaties are "law" or not that
occurred on conlawprof  earlier, the Geneva Conventions apply,  and the
Constitution does extend rights to citizens and legal non-nationals;  even
"deportable aliens" are entitled to due process protections see US v.
Zadavayas last term.  Within due process is the "shocks the conscience"
standard regulating police behavior *Rochin v. Calif*.   OK, so it is a
"mushy"standard, but nevertheless it is there.  I was speaking with
a  woman JAG officer last week, and she conducts training for troops on
international human rights law before they are shipped out;  true, the
military has different codes, but nonetheless is aware of and trains
soldiers on human rights.
An  insistence on "positive law" that says what we can and cannot do seems
a bit disingenuous here, as this is a situation that has not arisen
much.  To say "realpolitik" or politics ar eirrelevant to constitutional
law seems even more disingenuous to me--it is, after all a political
document that structures politics.  The evils of positivism rejected by
many German scholars post-WWII  have been mocked,  but they did have a point.
And although war can justify I suppose authoritarianism in this country, we
ought not adopt wholesale acceptance of "necessity" lest we fall into the
authoritarian trap as Glen Reynolds post noted.   As for the efficacy of
torture of all kinds i nextracting information, I doubt it will be at all
useful for those committed enough to die for their cause anyway.
Lynne
At 11:27 AM 10/22/2001 -0400, you wrote:
>I agree completely with Gerry Neuman about the need to take this subject and
>international law seriously, and if I thought that the US government was
>likely to find respect for international law in this time of crisis when it
>generally has no such respect in calmer moments, I would be thrilled and
>surprised.   But if we see no more support for international law even on the
>conlawprof listserv, where we have the luxury and obligation to think more
>theoretically about things, international law is generally a nonstarter here
>(despite the valiant attempts of Profs. Neuman and Forrest Martin whom I
>hope do not give up at educating the rest of the list), we can imagine that
>the international law arguments are unlikely to convince those who were even
>less sympathetic to its invocation in the first place.   Perhaps there are
>some people in the OLC who are actually taking these obligations seriously.
>Let's hope so.  In the meantime, I hope the international law experts on the
>list will keep reminding us that this is not even a close question.
>
>What I am most worried about (entering the Realpolitik world, which I
>generally shun) is that we are, I think, already at the point where the US
>government is facing this choice.  Or perhaps has already decided.   John
>Ashcroft announced last week that the FBI has moved from detection to
>prevention mode.
>What's the difference?  Given that the most visible concrete sanctions
>against torture exist as prohibitions on the use of evidence in subsequent
>trials, I can only assume that the move to "prevention" means that they have
>given up on thinking about the prosecution of specific past events (where
>the exclusionary rule would give them pause) and have started instead to
>focus primarily on the warding off of new threats (where the rule has no
>deterrent effect).  So then what?  What, I wonder, are they doing in
>"prevention" mode already?
>
>This is where I think we should demand that Congress specifically needs to
>authorize torture -- what kind, when used, for what purposes, on what
>evidence -- if it is to be considered an option for the security services.
>My guess is that, faced with the international law arguments and the
>international pressures that Gerry Neuman has pointed to, the Congress will
>not be able to bring itself to do this explicitly, as indeed the Israeli
>government has not, to my knowledge.   That would put a clear end to the
>matter.  The alternative -- having the issue raised as a possibility for
>courts to evaluate on a case by case basis or, worse yet, having the FBI
>make up the rules as they go -- invites a slippage of the prohibition which
>would be far more dangerous.   Making the issue of torture the subject of
>explicit legislative debate requires public defenses, which are simply not
>available for any but the most extreme cases of the sort that Eugene Volokh
>has pointed to.    The way that international law can make a difference
>here, given the present American state of respect (or lack thereof) for
>international law, is for international pressure to shame the Congress into
>realizing that this is a road that it should not take.
>
>I apologize for making a Realpolitik rather than a straightforwardly
>normative argument.  On the normative side, I am with both the International
>Convention Against Torture and with the brave decision of the Israeli
>Supreme Court under pressures perhaps even stronger than those the US faces
>now.  And for the record, that decision does have a catalogue of methods
>ranging from physical torture to shaking to sleep deprivation to making the
>subjects hold certain uncomfortable positions for long enough for them to
>become excruciating.  The Israeli Supreme Court condemned all of these
>methods as, I think, should we.
>
>--kls
>
>
>
>----- Original Message -----
>From: gerald neuman <gln1 at COLUMBIA.EDU>
>To: <CONLAWPROF at listserv.ucla.edu>
>Sent: Monday, October 22, 2001 6:17 AM
>Subject: Re: Constitutional guarantees relevant to torture of suspects
>
>
> > Dear Friends,
> > At the risk of appearing overly earnest, I would like to protest the
> > quality of this discussion.  The seriousness of condoning torture deserves
> > a greater degree of prior thought and reading than we seem to permit
> > ourselves in our chat about some other issues of constitutional law.
> > Although I realize that many members of this list have little respect for
> > international law, or for the voluntarily undertaken treaty obligations of
> > the United States, I suggest that they read the Convention Against Torture
> > and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465
> > U.N.T.S. 85, ratified by the U.S. with reservations in 1994 (see 136
> > Cong. Rec. 36194 (1990)). None of the reservations dilute the absolute
> > prohibition on torture contained in that Convention.  (And, by the way,
> > the Convention, with the reservations, also prohibits the US from
> > extraditing any one to any country where he is likely to be tortured,
> > addressing another possible solution mentioned in the article.)
> > I agree that as a matter of US constitutional law this treaty
> > does not trump the power of Congress to authorize violations in the
> > future.
> > For the admirers of Realpolitik, do members of this list really think
> > that the US could build a broad international coalition against terrorism
> > while openly trampling so central an element of the international law of
> > human rights as the prohibition against torture?
> > -- Gerry Neuman
> >
> >

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